The Legal Case For Vaccines Causing Autism

by SP

Quoted from From JB Handley “How to End the Autism Epidemic,” Chapter 6

I also find, with a high degree of medical certainty, that the set of immunizations administered to Yates at age 11 months while he was ill was the immediate cause of his autistic regression because of the effect of these immunizations to further impair the ability of his weakened mitochondria to supply adequate amounts of energy for the brain, the highest-energy consuming tissue in the body.

 —Dr. Richard Kelley, Professor of Pediatrics, Johns Hopkins University (Kennedy Krieger Institute)1

 

For years Dr. Zimmerman served as a go-to expert in “vaccine court” to dispute parental claims that vaccines caused their children’s autism. And as the reigning national expert on the topic of autism in the scientific community, Dr. Zimmerman’s opinions held tremendous weight: His written testimony helped deny the claims of the families of more than five thousand children with autism during an Omnibus Autism Proceeding in 2009 in vaccine court, as I will explain in a moment.

In the late 1990s a young doctor fresh out of medical school joined the Kennedy Krieger Institute in Baltimore as a resident and worked closely with Dr. Zimmerman. His name was Jon Poling. In 2000 Dr. Poling’s nineteen-month-old daughter, Hannah, experienced a massive regression into autism after her vaccinations, much as happened to my son. Unlike my son, Hannah’s parents had access to the most sophisticated autism research center in the world, and Dr. Zimmerman and several of his colleagues, including Dr. Richard Kelley, who was serving as director of Kennedy Krieger’s laboratory, tried to figure out what had happened to her, and why. Of course, everyone at Kennedy Krieger initially approached the idea that vaccines had played a role in Hannah’s regression skeptically, including Dr. Poling himself. He was a decidedly mainstream neurologist, having attended Georgetown to get both his MD and PhD. He and his wife Teri had fully vaccinated Hannah, and he’d explain many times over the next few years that he wouldn’t have believed it if he hadn’t seen it himself.

Through an unexpected series of events, Dr. Poling and Dr. Zimmerman, colleagues at the most prestigious autism research facility in the world, nearly ended the autism epidemic in 2008.

Because of Hannah Poling, Dr. Zimmerman became convinced that vaccines are indeed capable of causing autism under certain circumstances, representing a change in his previously held positions. Like any good scientist, Dr. Zimmerman appeared willing to go where the evidence took him, even toward something as inconvenient as a vaccine-autism connection.

Dr. Zimmerman’s professional opinion about what caused Hannah’s autism, given the tremendous weight he carried within the scientific community and his long-time role as an expert witness, triggered a panic at both the CDC and the Department of Justice.

It led to a quick twenty-million-dollar settlement with the Polings in 2010, but not before Hannah’s story became worldwide news.2   I’ve always had so many questions about the Hannah Poling case, Dr. Zimmerman, Dr. Kelley, and Dr. Poling. Soon after the news spectacle, the Polings disappeared from the public, never to be heard from again. Sources have told me that the Department of Justice made it clear to the Polings that if they wanted to receive their vaccine court compensation, they needed to keep quiet. They appear to have complied.

Very recently, however, Drs. Zimmerman and Kelley privately agreed to serve as expert witnesses in the first vaccine injury trial of any kind in a regular courtroom in more than thirty years. The trial is a medical negligence case in Tennessee, alleging that a pediatrician allowed a child to develop autism by vaccinating him when there was clearly excessive risk, based on previous reactions he’d had to vaccines. The boy’s name is Yates Hazlehurst, and he was one of three “test cases” in the aforementioned Omnibus Autism Proceeding back in 2009—only a year prior to the DOJ’s settlement with the Poling family—a case that was lost partially based on the written testimony of Dr. Zimmerman.3

 

Drs. Zimmerman and Kelley, under oath, provided depositions for the trial as expert witnesses. What’s significant is that in the future they would be testifying on behalf of the Hazlehurst family, confirming that in Yates’s case, vaccines caused his autism. Yes, you read that right. In 2009 the Omnibus Autism Proceeding concluded that Yates Hazlehurst’s autism was not caused by vaccination, a decision based partially on Dr. Zimmerman’s testimony—and a decision that, significantly, served as the basis for denying claims to more than five thousand other children. Fast forward to 2017, and Drs. Kelley and Zimmerman are expert witnesses for the same child, and they are both saying, “with a reasonable degree of scientific certainty,” that vaccines caused Yates’s autism.  Confused yet? I know I was. Let’s start at the beginning.

 

The “Vaccine Court”

If vaccines cause autism, you’d think “vaccine court” would be a great place to find the evidence for it. Compensated claims typically include extensive details about timelines, medical tests, and doctors’ opinions. They read more like case reports in medical journals than legal settlements. Established through the National Childhood Vaccine Injury Act of 1986, the original purpose of the vaccine court (officially called the United States Court of Federal Claims special masters) was to quickly and expeditiously pay any claims made by American citizens for vaccine injury. The vaccine court is buried within the Department of Health and Human Services (HHS), and when you petition the vaccine court because of a vaccine injury, you’re actually suing the federal government, and the lawyer representing the government (and therefore opposing your claim) will be a Department of Justice lawyerDue process in vaccine court is nonexistent. There’s no jury, just a single court-appointed “special master” who hears your case and makes a decision.

Since 1989, when the vaccine court began to operate, these special masters have awarded more than $3.8 billion to vaccine-injured Americans (children and adults).4 Of the total cases filed since the court came into existence in 1998, there have been twelve hundred (1,200) claims filed for death and eighteen thousand (18,000)  filed for injury. The DTP vaccine is the most common vaccine for claims to be filed against, with MMR in second place. Of the people who file claims with the court, approximately 34 percent end up receiving compensation; 2017 was actually the single biggest year for claims paid, with just over $282 million.

Rolf Hazlehurst, an assistant attorney general from Tennessee, has been an outspoken critic of the vaccine court, particularly since he had to fight his way through it as a claimant on behalf of his son Yates, who he believes developed autism as a result of his vaccinations. In a memorandum to the US Congress in 2013, Rolf Hazlehurst described the court:

Vaccine court is not a court of law. It is an administrative proceeding in which the most basic rules of law do not apply. In vaccine court, the Rules of Discovery, Evidence and Civil Procedure do not apply. There is also no judge or jury. In vaccine court, the American legal system has been replaced by what is known as a special master.  A special master is an appointed government attorney.

 

Why Does the Vaccine Court Exist?

This may seem like an elementary question, but it’s not. The purpose of the vaccine court is to protect the vaccine program, not to monitor vaccine safety or mete out justice. The year the vaccine court began operating—1989—is important to this story, because that’s also the birth year many point to as the beginning of a meteoric rise in the number of children with autism. Three other potentially monumental things happened in 1989: the hepatitis B vaccine was licensed, the Hib vaccine was licensed, and, for the first time, a second dose of the MMR vaccine was recommended for all American children. When the vaccine court was established in 1986, there were only three vaccines given in the United States—DTP, polio, and MMR—and vaccination rates hovered between 50 and 60 percent nationally.6 Today, there are eleven vaccines for children, given in multiple doses, with vaccination rates hovering around 90 percent nationally. There is an enormous difference between the market the vaccine court was created to “protect” and the market today. In raw numbers there are nearly four times as many vaccine doses given each year to children than there were in 1986, even though the US population has only grown by 0.3 in that same time period. Beginning in 1989, the US vaccine schedule quickly morphed from the one the vaccine court was created to support to a far larger schedule with more complexity. This isn’t a coincidence; the vaccine court removed all liability from vaccine makers, greatly altering the risk/reward reward calculation in their favor.

When the court was established, the word “autism” was never even discussed. By the late 2000s autism almost brought the entire court, and the vaccine program, to a screeching halt.

Changes Make It Nearly Impossible to Win Claims

Few people know that the vaccine court amended its rules in 1995 to make it harder to win a claim in vaccine court, largely due to the increasing number of claims made as the vaccine schedule became bloated. By revising its Vaccine Injury Table—a list of “accepted” injuries from various vaccines, the court quietly made the standard for proving a vaccine injury much higher. As one simple example, claims for DTP shots causing brain injury were paid on roughly 25 percent of filed cases before the 1995 changes and only 5.4 percent of cases after the changes were made, a decrease of more than 80 percent.7  Testifying before Congress in 1999, Barbara Loe Fisher, the president of the National Vaccine Information Center, explained:

The principal reason why the Vaccine Injury Compensation Program has become highly adversarial and is turning away three out of four claimants is that the Department of Health and Human Services (DHHS), with the assistance of the Department of Justice (DOJ), has wielded its discretionary authority to all but eliminate a just list of compensable events in the Vaccine Injury Table, thereby destroying the guiding tenet of presumption.8

Recognizing vaccine injury is no easy task; few doctors are able to recognize any of the signs. As I first mentioned in chapter 2, the United States has a vaccine injury reporting system called the Vaccine Adverse Event Reporting System (VAERS) database. Estimates are that VAERS captures roughly 1 percent of all vaccine injuries.9 How many vaccine injuries actually make it into vaccine court? A fraction of a fraction of a fraction of 1 percent. (I can’t find any accurate data, but the number is clearly tiny or the vaccine court would have exploded in size.) The burden is on the parents to track “adverse events,” despite the fact that pediatricians almost never explain all of the possible side effects. Parents might be told to expect redness at the injection site, swelling, maybe some fussiness or mild fever. Nothing some infant Tylenol can’t fix.

Perusing the website of a vaccine court attorney today, you can see how strongly the decks are stacked against those injured by vaccines.  Richard Gage & Associates, one of the top vaccine lawyers in the country, lets potential clients know that “obtaining compensation for a vaccine injury is a complex, sometimes extremely difficult process.”10   Parents of a child who received compensation shared their view about what the experience was like:

DOJ [Department of Justice] attorneys were disrespectful and combative.… The Compensation Program should be about compensation and not about defense of the vaccine program.11

A critical report from November 2014 about the vaccine court produced by the Government Accountability Office (a federal agency) found the court wasn’t accomplishing what it had been purportedly created to do: to make vaccine injury compensation quick and fair.12 The report noted that most claims take “multiple years to adjudicate” with 51 percent taking more than five years. Parents who have filed claims in the court report that the compensation program has an “adversarial environment” and a statute of limitations (three years from the date of injuries being exhibited) that reduces the likelihood likelihood that parents can even file claims.

This is far worse when it comes to autism, a condition that wasn’t even contemplated when the court was created. As Mr. Hazlehurst’s memo further explains:

The procedural “catch 22” of vaccine court works as follows. Under the Vaccine Act, before the parents of a vaccine-injured child may file a lawsuit in a court of law, they must first timely file a claim in vaccine court. However, the Vaccine Act has a 3-year statute of limitations, which begins to run upon the first symptom of injury. Under the CDC vaccine schedule children receive their first vaccinations either at birth or 2 months of age. However, in most cases, children are not diagnosed with autism until they are 3 or 4 years old. Therefore, by the time the child is diagnosed with autism, the statute of limitations has run in vaccine court and the parents are forever denied the right to proceed with a lawsuit in a court of law.13

In a 1998 article for the Washington Post, journalist Arthur Allen criticized the changing standards of the vaccine court and explained the excruciating (and ultimately losing) journey of a family whose son had become extremely disabled from the DTP vaccine.14  With the changes to the Vaccine Injury Table, Mr. Allen noted, “the burden of proof in most cases now lies with the petitioners, and that is a tricky business, because proof is an elusive matter in ailments of the brain.” Mr. Allen caught the former medical director of the Vaccine Injury Compensation Program, Dr. Geoffrey Evans, in a vulnerable moment, explaining the true purpose of the vaccine court:

There’s a larger issue, too. They want parents to immunize their children, and for that they want the record to show that vaccines are safe. “I’m not going to say that awarding too many people will undermine vaccine safety, but I look on the Internet, and I see that our statistics are taken out of context,”

says [Dr. Geoffrey] Evans, the medical director of the compensation program. I want to highlight something Mr. Allen wrote above: “They want the record to show that vaccines are safe.” Dr. Evans viewed his job as protecting the vaccine program, and he made it clear that awarding “too many people” for vaccine injury could very much “undermine” vaccine safety.

Why does this matter? Because shortly after Dr. Evans made this comment, the court was flooded with claims—claims from way “too many people” for something that no one had even discussed when the vaccine court was created in 1986: autism.  Omnibus Autism Proceeding (OAP) By 2002, four years after Mr. Allen’s article in the Washington Post, the vaccine court was overwhelmed with hundreds of claims for autism, a previously rare disorder (at the time) that was experiencing an explosive rise. Lawyers were warning the court that thousands more claims were headed their way. Chief Special Master (the head judge of the vaccine court) Gary Golkiewicz, in response, issued an order in July of 2002 to address an “unusual situation” facing the court:15

This situation arises out of concern in recent years that certain childhood vaccinations might be causing or contributing to an apparent increase in the diagnosis of a type of serious neurodevelopmental disorder known as “autism spectrum disorder,” or “autism” for short.

The vaccine court’s solution for handling so many The vaccine court’s solution for handling so many claims was complex, painstaking, and ultimately catastrophic for the families involved.

In simple terms, the vaccine court took more than 5,500 claims from parents alleging vaccines caused their child’s autism and put them into a single group. Six “test cases,” which were later narrowed to three, were singled out from these 5,500 claims, and the results of the test cases would impact the totality of claims made in the court. Parents were given the choice to opt in to the Omnibus Proceeding, putting them at the mercy of the outcome of the test cases, or opt out and file a separate claim in the court themselves. Most decided to opt in. Unfortunately, seven years passed between the formation of the OAP and the final judgment by the special masters, and in that time many special interests found ways to intervene and corrupt the proceedings, as Wayne Rohde explained in his 2014 book, The Vaccine Court: The OAP, for all the good intentions it was designed to achieve, quickly became a corrupt legal proceeding, all to accommodate the pharmaceutical industry, the medical community, and our government, instead of determining compensation for thousands of vaccine-injured children and the tens of thousands to come in the future.16 As the attorneys representing the 5,500 claims began to organize themselves, the choice of test cases became incredibly important to the outcome of the proceedings, as well as the first opportunity to corrupt the legal proceedings.

 

Hannah Poling: The Unassailable Test Case

As the lawyers representing the families sifted through the claims to find the perfect test cases to represent the Omnibus Proceeding, one case stood out for its robustness and defensibility: Hannah Poling, the daughter of Dr. Jon Poling of the world-renowned Kennedy Krieger Institute. The government, however, had an advantage that would allow it to tilt the proceedings in its favor: They could settle any claim from any family at any time, including the claims being put forth as possible “test cases.” The Department of Justice attorneys learned that Dr. Zimmerman believed Hannah Poling’s autism had indeed been caused by her vaccines. On November 30, 2007, Dr. Zimmerman penned a two-page letter to the Polings’ attorney, Clifford Shoemaker, explaining that with a “reasonable degree of medical certainty,” he believed: The cause for regressive encephalopathy in Hannah at age 19 months was underlying mitochondrial dysfunction, exacerbated by vaccine-induced fever and immune stimulation that exceeded metabolic energy reserves. This acute expenditure of metabolic reserves led to permanent irreversible brain injury. Thus, if not for this event [her vaccinations], Hannah may have led a normal and productive life. Presently, I predict Hannah will have a normal lifespan but with significant lifelong disability.17 Dr. Zimmerman’s medical explanations, some of which made it into the public realm, have at times been twisted by vaccine proponents. Make no mistake: What Dr. Zimmerman is saying here is that vaccines caused Hannah’s autism. His recent depositions make this clear.

 

Mitochondrial Disorders: Common or Not?

I want to take a quick departure to explain “mitochondrial disorder.” It’s an abnormality in metabolism, and if a child has a mitochondrial disorder, her cellular energy level is low, and she is more at risk of having a vaccine pushing her over the edge and causing a bad reaction, including developing autism. A child with a mitochondrial disorder is at higher risk for an immune activation event after vaccination. Vaccine proponents desperately want to portray mitochondrial disorders as rare, but that’s not the case, with the data showing that anywhere from 20 to 50 percent of children with autism have some type of mitochondrial disorder.18 Worse, mitochondrial disorders are sometimes genetic but can also be caused by the toxins in the environment. So a healthy child could receive one load of vaccines and develop a mitochondrial disorder and then receive a second load and develop autism. Mitochondrial disorder as a preexisting risk to regressive autism is what Hannah Poling taught the Kennedy Krieger doctors. Based on her data, they realized there is a “vulnerable subset” of children who regress into autism after vaccines because they have mitochondrial issues that may not be detected. Hannah’s mitochondrial disorder, which her dad repeatedly explained to the press was not rare at all, was what vaccine proponents would use to try to confuse the issue, to the annoyance of Dr. Poling. In 2006 a paper titled, “Developmental Regression and Mitochondrial Dysfunction in a Child with Autism” was published in the Journal of Child Neurology.19 It was a case report of a single child, Hannah Poling, and it told her entire story. The authors? Dr. Jon Poling and Dr. Andrew Zimmerman. Reading the study, you realize how Dr. Zimmerman and others at the Kennedy Krieger Institute were able to change their minds about the vaccine-autism connection: Hannah’s experience caused them to go back and revisit their clinical data, as they explain:

The subtle laboratory abnormities identified in this case led us to retrospectively evaluate the laboratory records of other patients with autism. Records from the Kennedy Krieger Institute between January 1995 and September 2002 were selected.

This study received almost no publicity back in 2006, but part of its discussion was foreboding: Young children who have dysfunctional cellular energy metabolism therefore might be more prone to undergo autistic regression between 18 and 30 months of age if they also have infections or immunizations at the same time. What’s important to recognize is that the Kennedy Krieger doctors came to their new point of view through careful research of their entire patient population of autistic children. Hannah Poling was the catalyst, not the basis, for their conclusions.

Twenty Million Dollars to Go Away

In late 2007, with the Omnibus Proceeding well underway (a final ruling would be delivered in 2009) and with Hannah Poling’s case officially presented as one of the three tests cases for the OAP, the Justice Department lawyers did something that likely saved the vaccine court and the industry it exists to protect: They settled the Hannah Poling case and removed it from the OAP. As Dr. Jon Poling explained:

We are obviously pleased with the HHS decision to concede our case, but we had NOTHING to do with the concession. This was a unilateral decision from HHS (recall that HHS is the respondent, rather than the vaccine maker, as manufacturers have blanket liability protection afforded by the Vaccine Injury Program established in 1986). I will not speculate on the obvious question—why concede? Hannah’s case was positioned to set precedent as a test case in the Omnibus Autism Proceedings for potentially thousands of other cases.20

HHS conceded the Poling case to save the vaccine industry and keep Dr. Zimmerman’s opinion from becoming public. Imagine the national backlash that would have ensued if Americans had heard the truth on TV and in the media: Vaccines caused autism, and the US government paid to silence the family whose case proves it beyond doubt. Think back to the purpose of the vaccine courtto show that vaccines are safe. Hannah’s case put that purpose at risk. Like most settled cases in vaccine court, Hannah’s was settled confidentially (with a gag order on the family) in late 2007. Most of us would have never heard of Hannah Poling, if one of the attorneys representing the families hadn’t leaked the settlement document to journalist David Kirby in early 2008.

It’s absolutely mystifying to read the entirety of the Poling family’s winning judgment. It’s a step-by-step explanation for how a child regresses into autism through multiple vaccine appointments, replete with ongoing doctor visits, emergency room trips, and recurring loss of previously attained developmental milestones.21 For an autism dad like me, it triggers a bad case of PTSD, with so many parallels to our experience with Jamison. Like many children, Hannah “consistently met her developmental milestones during the first eighteen months of her life.”22 On July 19, 2000, Hannah received five vaccinations at one appointment (DTaP, Hib, MMR, Varivax, and IPV), and her mother, a trial attorney, reported that Hannah “developed a fever of 102.3 degrees two days after her immunizations and was lethargic, irritable, and cried for long periods of time.” Twelve days after her vaccine appointment, Hannah “presented to the Pediatric Center with a 101–102 degree temperature, a diminished appetite, and small red dots on her chest.” She was diagnosed by the emergency room staff with “a post-varicella vaccination rash.” The judgment continues with a seemingly endless list of trips to doctors and emergency rooms for ear infectionsinconsolable cryingpainful urinationbowel distress, and many other physical problems. Finally, in February of 2001, roughly seven months after Hannah’s fateful vaccine appointment, she received an autism diagnosis from Kennedy Krieger by Dr. Andrew Zimmerman himself, and he noted that Hannah had regressive brain damage after her vaccine appointment. And with tortured language reminiscent of President Clinton defending his infidelities, the vaccine court admitted that vaccines caused Hannah’s autism: In sum, DVIC [Division of Vaccine Injury Compensation] has concluded that the facts of this case meet the statutory criteria for demonstrating that the vaccinations CHILD [Hannah Poling] received on July 19, 2000, significantly aggravated an underlying mitochondrial disorder, which predisposed her to deficits in cellular energy metabolism, and manifested as a regressive encephalopathy with features of autism spectrum disorder. Therefore, respondent recommends that compensation be awarded to petitioners.23

Dr. Zimmerman’s opinion had triggered the settlement in Hannah’s case. Earlier, Dr. Zimmerman had provided a separate opinion about one of the other test cases, that of Michelle Cedillo. He felt that Michelle’s autism had not been caused by vaccines, and a written memo he provided would be a primary reason that all three remaining test cases would lose in the Omnibus, impacting 5,500 families.

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